What is “Right to Be Forgotten?”

The right to be forgotten is the right to have private information about a person removed from Internet searches and other online directories under some circumstances. In 2014, the European Union (EU) enacted “the right to be forgotten” privacy law, which allowed people living in the EU to request removal of Google search results that were deemed no longer relevant or inadequate.

Since the ruling took effect, Google has received millions of de-indexing requests, but reports explain that fewer than 45% of those requests have actually been fulfilled.  Although the law requires Google to remove links from its search results in Europe, it has not translated to other countries.

What about Canada?

Currently, right to be forgotten laws do not extend beyond the borders of the European Union.

In Canada, there are no immediate plans to enact similar laws, with online defamation cases dealt with through a common-law action for libel. For instance, a Canadian can request defamatory content be removed through an injunction issued by the courts. But, even this remedy can be difficult to obtain. Canadian courts deal with a number of challenges when presented with online defamation cases, such as establishing who the original publisher was and whether the content posted on the internet is in fact defamatory in nature.

Currently, Canada does not have a formal rule in place for de-listing link requests. While Canadians wait for legislation to pass in the future, here are some cases involving the right to be forgotten to consider in the meantime.

Eva Glawischnig-Piesczek vs. Facebook

The judgment will likely place more responsibility on Facebook and other social platforms to police their sites for wrongdoing as they deal with an increase of often competing laws and regulations.

While the EU’s decision to require Facebook to remove negative content globally is a step in the right direction, it will likely take years for the rest of the world to follow suit.

Right to be Forgotten: Has Google Complied?

While Facebook had to comply with EU court rulings to remove defamatory content, the courts have ruled that Google does not have to apply the right to be forgotten globally. This means Google only needs to remove links from its search results in Europe, after a proper request is made. Since the European courts made their decision in May, 2014, Google has in fact complied with the right to be forgotten policy, and in 2015, it introduced a geoblocking feature that prevents European users from being able to see delisted links. However, Google resisted censoring search results for people in other parts of the world.

In his ruling, the EU Court of Justice said, “Currently, there is no obligation under EU law, for a search engine operator who grants a request for de-referencing made by a data subject… to carry out such a de-referencing on all the versions of its search engine.”

Europe’s General Data Protection Regulation (GDPR)

Before GDPR was enforced, Europe struggled to keep pace with rapid technological changes. GDPR changes the way businesses and public sector organizations handle the information of their customers and gives customers more control over their information.

Google vs. CNIL

In 2015, French privacy regulator CNIL ordered Google to globally remove search result listings on results containing damaging or false information about a person. In 2016, Google introduced a geoblocking feature that prevents European users from being able to see delisted links, but resisted censoring search results for people in other parts of the world.

Theodore F. Claypoole, a writer for the National Law Review, supported the decision yet remains skeptical of the EU’s protection of the right to be forgotten. Claypoole argues that the foundation of Europe’s social system requires any truthful utterances to remain in the light, and believes that allowing de-listing to shove true facts into darkness is wrong.

Sweden’s DPA vs. Google

When will Canadians be protected by Right to Be Forgotten Laws?

According to a poll conducted by research foundation Angus Reid Institute, 51 percent of Canadians believe they should have the right to be forgotten and search engine results changed so that “negative information doesn’t dominate their online record forever.”

The same poll found 26 percent of Canadians believe Internet searches are a form of public record and results shouldn’t be erased.

Unfortunately, The European Court of Justice ruled that the EU’s right to be forgotten legislation does not apply beyond its own borders. With that said, the EU law is sending a signal to other countries, including Canada, about creating their own right to be forgotten laws.

A Step in the Right Direction?

According to the Office of the Privacy Commissioner of Canada (OPC), requests for de-indexing search results already fall under the jurisdiction of existing privacy legislation.

However, the OPC named “Reputation and Privacy” as one of its strategic privacy priorities and set the following statement as a main goal.

[We] will have helped to create an environment where individuals may use the Internet to explore their interests and develop as persons without fear that their digital trace will lead to unfair treatment.